Small but Mighty

I was out for drinks recently (unusual for me, I know) with a very dear friend who is as fond of a drink as I am, but I’ve never seen him drunk…. until now. Ok, he wasn’t drunk, but he was definitely merrier than I’ve ever seen him before. So, strangely, it was my job to escort him safely back to the station to send him on his way home rather than the other way around.

On the way, given that he was very merry, and I was relatively sober (honest) we had the kind of conversation that you always wish afterwards that you’d been able to record. It included him demonstrating that he was not drunk, by walking in a straight line following the paving stones, but completely missing the fact that the cracks in the pavement were not straight, so following them simply made him look more drunk. He insisted that a window only a few feet above us was his apartment (he lives on the 7th floor). Finally, just before we reached our destination, I noticed a girl in a very short skirt who was even more the worse for wear than he was, perched on a windowsill, looking very inappropriate. I asked my friend if he thought she was touting for business, and before I knew it, he was trying to make a bee line for her, to ask her prices and what she’d charge for a threesome. I really didn’t know whether to laugh or cry, but I cheered with delight when we reached the station without any further mishaps.

However, as I’m sure you would expect, I’m no stranger to being asked strange questions and having to give perfectly sensible and professional answers, with a straight face, and resisting the temptation to shout, swear or put the phone down.

This happens most often in litigation, particularly when the other side are litigants in person.

For example, it’s common to be told by someone that they are going to issue proceedings in the small claims court, which means they won’t have to pay any legal costs so they have nothing to lose. You may think, well what’s wrong with that. The answer is that no one can issue in the small claims court. What happens is you issue in the general court, and then once both sides have put in their pleadings, and provided additional information, the Judge will decide whether to allocate it to small claims or not. So if you issue a claim against my client for under £10,000, and in my reply I put in a counterclaim for £20,000 (which is something you have no control over) it is highly unlikely that it will be allocated to small claims. It will probably go to Fast Track (one day trial) where costs can and usually are awarded. So don’t assume you will automatically go to small claims and so have no costs risks, because there are a number of reasons why this may not happen and you won’t necessarily get a say.

Litigants in person also often insist that we’ll have to pay their costs. Well yes, if you win, we probably will, but (there’s always a but) this may depend on a number of factors. If we do go to small claims, the most you’ll get is fixed costs and the court issue fee. However, even if we are not in small claims, it’s not automatic that the winning side will get costs (although this is common) and there are a number of factors that the court will take into account, such as the conduct of the parties (particularly if the issuing party didn’t comply with the pre action protocol which litigants in person rarely do) and whether any offers to settle were made.

I’m also regularly told by people like debt collection companies that if my client doesn’t pay, it will adversely affect my client’s credit rating. Again, this isn’t completely wrong, but it’s not strictly speaking true. Even if proceedings are issued, and my client is found liable, provided they pay within 30 days of judgment being entered, the judgment will be removed from the record and no one will ever know it existed. So trying to persuade me to make my client pay a contested debt simply to protect their financial standing just won’t stand up (bit like my friend!)

Finally, I’m often told both by the other side and sometimes by my clients that they don’t need a solicitor for small claims. Yes, you are absolutely correct. In fact, you don’t need a solicitor for many court proceedings – you could run a whole multi track case from start to finish on your own, but like the conversation with the windowsill girl, it could all end in tears. No matter how hard the authorities work to try and make small claims cases suitable for litigants in person, there are still certain legal issues, such as understanding pleadings and complying with orders that can be as confusing as trying to understand someone whose had too much to drink. In a case I’m working on at the moment, my opponent (a litigant in person) is up in arms because he believes I didn’t comply with the first line of the order, which he thinks means he doesn’t have to comply with the second line. The first line gives me the right to do something, but not the obligation. He was obliged to comply with the second line, no matter what I did. By him not complying with the second line, I’ve now applied for judgment against him and he’s too late to stop me. The most he can do now is either hope the Judge takes pity on him, or ask the court to set my judgment aside, but that will take time and cost more than my friend spent on alcohol.

Whilst small claims can be a mighty weapon in the armoury of those who aren’t in a position to instruct solicitors, like most weapons, they can be deadly in the wrong hands. If you’re involved in a small case, and want some protection from a disappointing outcome, drop me a line for a copy of my guide to being a litigant in person.

Kleyman & Co Solicitors. The full service law firm. If you think it’s expensive to hire a professional, wait until you see what it costs you to hire an amateur.